And in other thoughts on patents

How about a prior art wiki to provide patent examiners with access to all that knowledge people other than patent examiners and applicants have?

This is an idea mooted in a post on Promote the Progress this morning.

It is worth thinking about - and, indeed, last year there were some similar ideas floating around in the open source community here in Australia, to try and deal with some of the issues of the quality of software patents.

What's the problem? The problem is that patent examiners are not perfect (shock! horror!) and sometimes don't have as much knowledge about an area of technology as people who are out there working in the technology. Think software: no patent examiner is going to know as much about what is going on than the thousands of programmers out there who are coding day to day. That knowledge could help patent examiners make better decisions about whether an invention is novel, and whether it is obvious. If known to the examiners, it could lead to better quality patents.

BUT - how do you get that knowledge into the patent examination process? How do examiners get access to it? Is there a way we can transfer the information from the marketplace to the examiners during examination, without giving rise to major problems in terms of holding up patent grants for ages and ages?

Australia and the US both have systems that allow third parties to submit information into the system. Australia has section 27; the US, as I understand it from Promote the Progress, allows submission of information (without any statement of why it is relevant!) in a 2 month window after a patent application is published. These systems are not likely to work very well. The publication of patent applications is only likely to be monitored by people with a lot of money - patents are often unreadable; it is expensive to monitor these things and work out relevance. We have, in short, a bit of a coordination problem.

The possible solution mooted by PromotetheProgress this morning? A prior art wiki! (If you don't know what a wiki is, have a look here, on wikipedia. You really should. They're very cool). So here's a proposal:

'The USPTO maintains a prior art wiki site (e.g., priorart.uspto.gov) and adds a page for every application upon publication (18 months). So, every Thursday, the Patent Office adds pages to the wiki for every application that is being published that week. The page for each application contains at least the full text of the application. Ideally, drawings are conveniently located on the same page. Optional information could be added that allows for efficient searching, links to related pages (both on the wiki and elsewhere), etc.. A prior art section is featured prominently on the page and is pre-loaded with any references submitted by the applicant and/or cited by the Examiner.'

I'd be really interested to hear issues that people have with such an idea. I've been thinking about this third party information issue for a while, and I find aspects of this proposal quite attractive. Of course, I may not be aware of all the problems it could cause, so - any thoughts, anyone?

 
Patent term extension? No way (phew)

I've updated my post below on the "Sony Bono Patent Term Extension Act" - according to Buchanan at Promote the Progress, the CNET story earlier this week which mentioned the possibility of patent term extension was way off track, based on one off hand comment. As Buchanan puts it,

lengthening the duration of the patent term is not a serious component of the current reform effort, nor is it likely to become one

Thanks Matt. I am much relieved to hear it.

 
Infringement of trade marks by advertising on the Internet???

Justice Merkel has handed down judgement in Ward Group Pty Ltd v Brodie & Stone Plc [2005] FCA 471 (22 April 2005) . The case is about whether a UK firm, advertising its goods on a UK website where, of course, those ads can be seen in Australia and where purchases are made in Australia, infringes Australian trade marks:

'1. The applicant ("the Ward Group") is the Australian manufacturer and distributor of anti-greying hair creams and lotions marketed under the brand name "Restoria" ("the Australian Restoria products"). The Ward Group claims that similar hair creams and lotions manufactured and distributed by the respondents in the United Kingdom under the same brand name ("the UK Restoria products"), which were advertised for sale and sold on certain websites on the Internet, infringed its trademarks and passed off the UK Restoria products as and for the Australian Restoria products.
2. The Ward Group is claiming declarations and injunctions for trade mark infringement and passing off against the respondents (referred to compendiously as "Brodie & Stone") on the ground that Brodie & Stone is a joint tortfeasor, together with the owners of the websites ("the website proprietors"), in respect of the alleged trade mark infringements and passing off. The claims against Brodie & Stone are based upon it being the manufacturer and distributor in the United Kingdom of the UK Restoria products that were advertised for sale and sold on the Internet by the website proprietors.'

The legal issues are summarised by the judge as follows:

'(1) whether the advertising and sale of the UK Restoria products on the Internet by the website proprietors infringed the Ward Group’s Australian trade marks or constituted a passing off of the UK Restoria products as and for the Australian Restoria products of the Ward Group; and, if so
(2) whether Brodie & Stone, as the manufacturer and distributor of the UK Restoria products in the United Kingdom, was liable as a joint tortfeasor in respect of the trade mark infringements and passing off of the website proprietors. '

The case is interesting in particular because the advertising of the UK Restoria products, together with numerous other products, for sale on the Internet by the website proprietors was not specifically targeted or directed at customers in Australia. Rather, the advertising targeted potential purchasers anywhere in the world at large. What is more, Brodie & Stone, the respondents in the action, weren't even the ones doing the selling on the Net. As Merkel J put it:

'Brodie & Stone is not based upon it having sold UK Restoria products to any of its customers intending or knowing that those goods were to be advertised for sale or sold by a customer on the Internet. Rather, the case was based upon the Ward Group informing Brodie & Stone that some of Brodie & Stone’s customers were selling the UK Restoria products to entities or individuals who, in turn, were selling UK Restoria products on the Internet, and that the offering to sell and selling of those products to customers in Australia on the Internet constituted an infringement of the Ward Group’s Restoria trade marks in Australia and passing off. The Ward Group contended that once Brodie & Stone became aware of those matters it was obliged to place restrictions on the resale of its UK Restoria products, and its failure to do so made it a joint tortfeasor in respect of the trademark infringements and passing off alleged against the website proprietors.'

In something of an understatement, Justice Merkel noted that:

'Plainly, the Ward Group’s claims, if upheld, can have significant consequences for the sale of goods on the Internet."

On the passing off issue, the judge found that the claim failed, because there was no damage proved from what happened in Australia - it was 'most unlikely that anyone else in Australia had searched on the Internet for, and then purchased, the UK Restoria products instead of, or in preference to, the Australian Restoria products'. Even had there been damage, Merkel J said, he would have had issues with finding a representation made in Australia in circumstances where the representation was not directed specifically at Australians. Had the representation (that the website was selling Restoria products) been directed at Australians, there might have been a representation.

On trade mark infringement, there are some useful comments from Merkel J. First, he talks about when use of a mark on a website is use in Australia (capable of being infringing). After looking at some of the US authorities, he concludes:

'In summary, the use of a trade mark on the Internet, uploaded on a website outside of Australia, without more, is not a use by the website proprietor of the mark in each jurisdiction where the mark is downloaded. However, as explained above, if there is evidence that the use was specifically intended to be made in, or directed or targeted at, a particular jurisdiction then there is likely to be a use in that jurisdiction when the mark is downloaded. Of course, once the website intends to make and makes a specific use of the mark in relation to a particular person or persons in a jurisdiction there will be little difficulty in concluding that the website proprietor used the mark in that jurisdiction when the mark is downloaded.'

However, there was a use directed to Australians in this case. Once a customer selected their country from a drop down menu (which included Australia), then uses were potentially uses in Australia. OK, so we still have a problem. But ah, there was no proof of purchases in Australia except the 'trap purchases' by the Ward Group's solicitors. And the Ward Group authorised those actions, and so authorised any use of the mark on those occasions. SO no trade mark infringement!

Moral of the story?

It will be possible to infringe a trade mark in Australia, by use on an overseas website, where communications of that website are targeted at Australians. But you are going to have to prove that Australians, other that people authorised or engaged by the trade mark owner, have received those representations. A tricky matter of evidence, potentially, but it is arguably not inappropriate to require something to be happening in Australia, on the other side of the world from where the webiste is launched, before lawsuits can happen here. To find otherwise would surely encourage a bit of easy forum shopping.

 
US Patent reform & the Sony Bono Patent Term Extension Act(?) (UPDATED 29 April 2005)

There was a Senate Subcommittee on Intellectual Property Hearing on the US patent system on 25 April.

The head of the US Patent Office, Jon Dudas, reportedly endorsed some key reforms to the US patent system His testimony is here. (pdf). In particular he seems to support:

• adoption of the first to file system (rather than giving the patent to the first person to invent, as they currently do (the rest of the world uses first to file) (generally supported, although the usual concerns about the effect on small inventors were raised)
• adoption of some kind of post-grant review (perhaps like the EU opposition system) (generally supported, but differences remain on the details of the system - particularly on when opposition should be allowed)

For other testimony, and a perspective on the hearings, have a wander over to the Promote the Progress Blog (multiple links and info titbits there). For those interested in the software patent debate, you might be interested in looking at this testimony (from Intel/Business Software Alliance). According to Buchanan, the themes of the hearing were:

There is widespread support among users of the patent system for several major reform measures, including both administrative reforms and litigation reforms.
Substantial differences of opinion exist on a few of the proposed reform measures, including proposed changes to the injunctive relief provisions of the patent laws.
International harmonization of patent laws is one of the driving forces behind the current reform efforts.
There is a seemingly unanimous belief amongst users of the patent system that adequate and stable funding (using the words of Michael Kirk) for the Patent and Trademark Office is critical to the success of any reforms that are eventually enacted.
Politicians appear ready and willing to tackle the issue.

A few reforms of the US patent system are well overdue. In particular, Buchanan's suggestions that there were talks about the automatic injunctions that lie at the heart of the problems in the US with 'evergreening' are very welcome.

But slightly more concerning is the suggestion in the CNet story:

'Other legislative possibilities include lengthening the duration of a patent, currently 20 years. "I've begun to wonder whether the time for the patent is an adequate time," said Sen. Dianne Feinstein, D-Calif.'

You see, patent term (20 years) looks just so unfair beside the copyright term (life of the author plus 70 years). Aren't inventors just as important (if not more important) than those scruffy creative types who hang around in attics painting weird stuff? Come on! Surely patents should be longer. In fact, why shouldn't patents last forever minus a day? (ok, please note the ironic tone of this paragraph! But can't you just see the debate? Hopefully this suggestion from one lone senator is not serious. There's plenty of inventions, after all, where 20 years is way too long - software-related or computer-related inventions is one that springs to mind. Note also that a 20 year term is NOT the term for everyone anymore - lots of pharmaceutical patents can get extended to compensate for the period where they are seeking regulatory approval and can't enter the market)

UPDATE: According to Buchanan, "the duration of the patent term is not a serious component of the current reform effort, nor is it likely to become one". Phew. Thanks Matt.

 
Could it be? Could we really be finally about to get an iTunes store here in Oz?

So industry insider (?????) and part time gladiator Russell Crowe reckons.

SMH has a story....

 
Plagiarism: it's a never-ending debate

An interesting debate over at the Becker-Posner blog this week, with posts by Posner and Becker on plagiarism: both by students, and by Professors. And there's an interesting point of difference: Posner appears to view student plagiarism as requiring more serious punishment because it is harder to detect.

According to Posner, where student essays are read by few (ie, their professors), professor essays are read by many (ok, not many, but more surely) and are more likely to come to the attention of the plagiarised writer. According to some fairly well known theories used in analysis of criminal law in particular, as the risk of detection decreases, the punishment must increase in order to achieve the same level of deterrence. So, student plagiarism is should be punished more strongly.

Becker begs to differ - arguing that penalties should reflect both the punished person's level of knowledge about their wrongdoing, and the harm to society that arises from the transgression. Professor plagiarism is worse on both counts: they know better what is allowed, and they also stand to gain more from their plagiarism (promotions, tenure, research grants etc).

For my own two cents worth: when it comes to academic plagiarism, if it looks to students like the penalties are insufficient for faculty, it seems to me that that's because they're not looking hard enough. Academic work is so much (like many professions) about reputation. No one wants a reputation as a plagiarist. It's likely to impact on options for promotion - but even if it doesn't, then it will impact on your collegiate atmosphere and your relationships with other academics. I reckon life with that reputation would be absolutely miserable.

As for the student issue: I do not think that, currently in the Australian university system, we are taking plagiarism by students sufficiently seriously or sufficiently conveying to students that it must not happen. Until we can convince students that it is actually serious, they will continue to do it. I detect some elements of it pretty regularly.

We do need to do one of two things: improve detection, or increase penalties. Increasing penalties would likely be pretty effective: imagine if serious instances of plagiarism were permanently recorded on the transcript of the student. However, always looks disproportionate (do you really want to punishment someone permanently for that kind of mistake?)Ideally, then, we want to improve detection - perhaps the new forms of technology will help here. Until something is done, however, some students are likely to continue conducting a cost-benefit analysis which runs something like: the chance of me getting caught is minimal, if I am caught the punishment is low, therefore I will engage in some level of plagiarism.

 
Australia's lack of interest in R&D

An interesting op-ed from George Fink, director of the Mental Health Research Institute of Victoria, former vice-president (research) of an Israel-US biotech corporation, and former director of the MRC Brain Metabolism Unit in Edinburgh:

'although Australia has improved its public expenditure on research and development compared with other nations, Australian business is falling behind in its investment in innovation....

So why is Australia missing out on the bountiful investment that has triggered the economic equivalent of a self-sustaining nuclear fusion generator in nearby Asia?

The answer lies in our complacency and lack of interest in R&D: our lack of vision; our irrational fear of novelty, entrepreneurship, migrants and tall poppies; and our all-consuming passion to continue to play enjoyable but unproductive games in the sand.

 
Finally, some potential action over in the States over those ridiculously long law review articles

About time. A bunch of leading Law Reviews have taken action against the rising tide of superfluous words that we see in US law review articles, and are trying to cut back on Law Prof verbosity.

Here is a joint statement from law reviews at Columbia, Cornell, Duke, Georgetown, Harvard, Michigan, Stanford, Texas, U. Penn., Virginia, and Yale, stating that:

' To the extent that the article selection or editing process encourages the submission and publication of lengthier articles, each of the law reviews listed above is committed to rethinking and modifying its policies as necessary. Indeed, some have already done so. The vast majority of law review articles can effectively convey their arguments within the range of 40-70 law review pages, and any impression that law reviews only publish or strongly prefer lengthier articles should be dispelled. Ultimately, individual law reviews will have to decide for themselves how best to resolve these concerns. Please know, however, that editors across the country are cognizant of the troubling trend toward longer articles and are actively exploring how to address it.'

According to the Harvard Law Review policy:

'The Review will give preference to articles under 25,000 words in length -- the equivalent of 50 law review pages -- including text and footnotes. The Review will not publish articles exceeding 35,000 words -- the equivalent of 70-75 law review pages -- except in extraordinary circumstances.'

I think this is a great idea, and long overdue. The tendency to write books instead of articles it not a good one and not conducive to good scholarship. Good scholarship distills and communicates ideas - it does not bog the reader down in endless proofs of just how learned the writer is.

 
Patent reform is hot

No, really.

OK, well maybe only for complete IP nerds like me.

But complete IP nerds like me may be interested in these comments from J Matthew Buchanan on action coming up in the US Congress on patent reform: which notes:

• 2 House Subcommittee meetings on patent quality improvement;
• An oversight meeting on "perspectives on patent".

In another post, Buchanan discusses the oversight hearing on 21 April, noting that:

• Several committee members expressed their belief that patent reform is important;
• the committee was interested in gauging support for the reform issue generally, as well as for specific reform measures. The witnesses were carefully selected to represent a cross section of users of the patent system
• the hearing showed that the reform effort has broad-based support amongst users of the patent system
• two of the “big ticket items” (switching to a first inventor to file system and establishment of an administrative post-grant review system) clearly enjoy broad support.

 
Dare-ing the Kokoda: New Judgment on joint ownership of copyright in a film

Gyles J has handed down judgment in the case of Seven Network (Operations) Limited v TCN Channel Nine Pty Ltd [2005] FCA 476. The case is all about ownership of some film of a few kids from a Sydney High School being taken on the Kokoda trail.

The broad facts aren't that hard to follow:

• Enthusiastic organisation called DARE - Discipline and Responsibility Encounter - which aims to help young people from disadvantaged backgrounds pursue their goals and dreams;
• Have the inspiration to take a bunch of kids from a High School described as a war zone to a real (past) war zone - no, not Iraq, but the Kokoda Trail;
• Get the support of some people at the Seven Network, and have involvement from the Seven Network in the organising stages;
• DARE organise the funding, organise the trip, the kids - pretty much everything. Seven assists with organising the camera crew but unusually, most of the fares, accommodation and expenses including outfitting of the crew are borne by DARE;
• On return to Australia, the raw film is handed over to Seven, who end up using 12.5 minutes on a Today Tonight segment on the story. DARE wanted a one hour documentary for the publicity it would give them; that never happens.
• unusually, the films are handed back to DARE, in accordance with discussions prior to
• The film is handed back to DARE, who have explicitly mentioned they want it for promotional purposes;
• Eventually, DARE makes arrangements with Nine for a documentary using the footage;
• When they see ads for the Nine Documentary (back in March), Seven get very angry and end up suing
• an injunction was gained in March, but the hearing was in April with anticipated filming by Nine this weekend some time.

So the legal issues are:

• was Seven a joint owner of copyright in the films?
• were the films given to DARE on terms that prevented this kind of commercial use?
• does the Nine Documentary infringe copyright in the film shown on Seven (on Today Tonight)?

Gyles J held that:

• Seven was a joint owner of the copyright in the films. Under s.98 of the Copyright Act, the owner of copyright in a film is the 'maker' of the film. 'Maker' is defined in s.22(4) as 'the person by whom the arrangements necessary for the making of the film were undertaken'. This was a case that did not fit these provisions easily. But, Gyles J held, 'the arrangements necessary for the making of the film were undertaken primarily by DARE, but ... Seven also played a part. It was, in effect, a joint venture." but
• after Seven handed over the tapes, DARE had all rights of property in them, including copyright without restriction as to what might be done with them;
• the Nine documentary did not infringe copyright in the Seven films - there was no copying of the selection of the films - not even 'subconscious copying'.

The moral of the story?

• First, as usual, get it in writing. Seven had problems because it neither (a) got full assignment of copyright in the film from the other 'makers', and (b) it did not make clear the terms on which the film was handed over. Of course, this is exactly what most of us do every day - just go ahead and do things without putting it all in writing. I suppose that's why lawyers make money;
• Second, when you make a film, make sure the ownership terms are clear. The understanding of 'maker' that Gyles applies here is pretty broad - while Seven was undoubtedly highly involved (and there may be facts I don't know), as I read it, Seven was not so much making the arrangements for the making of the film as goign along with the excited plans of someone else who was really doing most of the running. Perhaps I'm misreading it. But in these circumstances, if Seven is a co-owner, then a lot of other people who may not realise it may be 'co-owners' of copyright (or joint makers).

 
Academic journal titles

I read a lot of journal articles - being an academic and all. Every now and then one sees a journal article title and just has to say - huh? So, journal article title of the day is:

''Estimating the Effect of America's Most Wanted: A Duration Analysis of Wanted Fugitives"

the mind boggles.

 
Spam spam spam spam

For people interested in the regulation of spam, this post from Ethan Preston is an interesting discussion of how blacklists might or might not work to reduce that horrible scourge. In particular, Ethan talks about the way that trying to control spam might mean blacklisting entire countries (hmmmm, the idea of blacklisting communications from China? I'm not quite so sure).

At any rate, if you're interested in this stuff, it also ties in with some work by Joel Reidenberg, who has been exploring the technologies that allow balkinisation of the net for some time: see this abstract on SSRN for his latest paper on the issue. A taste:

'The current technology of the Internet creates ambiguity for sovereign territory because network boundaries intersect and transcend national borders. In this environment, jurisdiction over activities on the Internet has become a battleground for the struggle to establish the rule of law in the Information Society. This essay argues first that the initial wave of cases seeking to deny jurisdiction, choice of law and enforcement to states where users and victims are located constitutes a type of 'denial of service' attack against the legal system. In effect, the defenders of hate, lies, drugs, sex, gambling and stolen music use technologically based arguments to deny the applicability of rules of law interdicting their behavior. The essay next shows that innovations in information technology will undermine the technological assault on state jurisdiction. … the essay argues that the exercise of state power through assertions of jurisdiction can and should be used to advance the development of more granular technologies and new service markets for legal compliance. Technologies should be available to enable Internet participants to respect the rule of law in states where their Internet activities reach. Assertions of state jurisdiction and electronic enforcement are likely to advance this public policy.

 
Thanks...

To all those people who've emailed me in the last week or so - particularly about this post, where I speculated on the benefits of blogging for an Australian academic. It's been good to hear from a few regular readers, including those outside the academy!

Particularly interesting was the student from Berkeley who rather helpfully reminded me that some US law students do read the blog, and that, as a result, there might sometimes be benefit in terms of article placements. Very interesting!

So thanks all! and keep reading!

 
I hope you all have your party hats on

So, Sunday 23 April is designated by UNESCO as 'World Book and Copyright Day', 'an annual worldwide celebration, the event is meant to encourage and assist young people to discover the pleasure of reading books and the need to protect copyright and general knowledge of the literary industry'.

Then 26 April is WIPO's 'World IP day'. (notice that no one appears to have suggested a 'world patent day'. It's just hard to be generally positive about patent or celebrate the beauty and wonderfulness of patents even if they ARE good public policy).

I'm not sure what someone is meant to do on a 'World Copyright Day' or a 'World Intellectual Property Day'. Fortunately, WIPO has a list of suggested activities, which includes:

• With local businesses and chambers of commerce, organize workshops on how businesses, especially small and medium-sized enterprises (SMEs), can benefit from using the intellectual property system (oh, like we do all year really);
• Organize conferences at local universities to build awareness of intellectual property and its benefits among students, faculty and researchers (yes, we have information sessions all the time at Melbourne)
• Mount exhibits at local shopping malls explaining how consumers benefit from strong intellectual property systems (for example, how reliable trademarks can ensure consumer confidence, or how pirated or counterfeit goods can cause problems for consumers). (yes, I can just see this. No, kids, you don't want to see the Australian idol or Xfactor celebrity of the moment. What you really want to know about is trade marks)
• Hold a panel discussions (debate) on “hot” intellectual property issues (ie. Patents and pharmaceuticals, the download of music from the Internet, open source vs. software patents, etc.) – encourage public participation or hold in a university (I like the fact that public participation and universities are two mutually exclusive alternatives)

OK, so I'm being a little harsh here. But I'm just not sure that in Australia, a celebration of IP is going to be seen as all that appropriate or important the day after we remember the sacrifices of many in wars where people gave their lives - not their creative products - for their country.

 
Temporary Copies - now if only the High Court read blogs...

Because one of the isuses the court has to grapple with in the Sony case is the issue of the status of temporary copies. And I think it would assist the court to read this casenote (pdf), by Jonathan Band and Jeny Marcinko, in the 2005 Stanford Technology Law Review, on the US 4th Circuit case of CoStar Group Inc v LoopNet, Inc (pdf) 373 F.3d 544 (4th Cir. 2004).


The case was an argument between CoStar, a company that owns copyright in photogrtaphs of commercial real estate, which sued a company called LoopNet for operating a real estate-related website where subscribers posted CoStar's copyrighted photographs. CoStar sued, arguing that Loopnet was both a direct infringer of copyright (via its passive uploading of the photographs onto the computer system), and indirect (secondary) infringement.

The interesting thing about the case is the way it deals with 'temporary copies' - and whether temporary copies - for example, copies made in the RAM (random access ie temporary memory) of a computer - made without authorisation are infringements of copyright.

This is important because so many digital technologies make so many temporary copies of things. According to copyright owners, they ALL require authorisation (subject to defences). As I've argued elsewhere, temporary copy arguments are almost invariably made, not because the temporary copies themselves are of economic significance, but because copyright owners want to control some particular activity and 'temporary copies' is the only infringement they can hang their hat on (eg, AVRA v Warner, where copyright owners wanted to create a kind of rental right in DVDs. eg, Sony v Stevens where 'temporary copies' arguments were used to try to found an anti-circumvention argument).

The status of temporary copies has been a bit unclear in Australian law, and will be considered by the High Court in Stevens v Sony. But with the Free Trade Agreement, it seems we expanded our coverage of temporary copies, explicitly. The provisions in the FTA are based on an understanding of US law as covering all temporary copies as potential copyright infringements.

Our understanding of US law on temporary copies has generally been, over here in Oz, that all temporary copies were at least potential copyright infringements (subject to any applicable defences). This belief rests on two things. First, the definition of 'copies' and 'fixed' in s101 the US Copyright Act:

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

Second, the decision of the 9th Circuit in MAI Systems Corp v Peak Computer, Inc 991 F.2d 511 (9th Cir 1993), which held that the copy of a computer program made temporarily in RAM when the program is run was a 'copy' sufficiently fixed to constitute a potential infringement.

The interesting thing about the LoopNet decision, as appears from this casenote, is that it suggests a slight 'wrinkle' to the MAI v Peak reasoning. In essence, the court rejects the idea that copies made by an 'information conduit' are fixed for 'more than transitory duration':

'When an electronic infrastructure is designed and managed as a conduit of information and data that connects users over the Internet, the owner and manager of the conduit hardly "copies" the information and data in the sense that it fixes a copy in its system of more than transitory duration. Even if the information and data are "downloaded" onto the owner’s RAM or other component as part of the transmission function, that downloading is a temporary, automatic response to the user’s request, and the entire system functions solely to transmit the user’s data to the Internet. …

In concluding that an ISP has not itself fixed a copy in its system of more than transitory duration when it provides an Internet hosting service to its subscribers, we do not hold that a computer owner who downloads copyrighted software onto a computer cannot infringe the
software’s copyright. See, e.g., MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518-19 (9th Cir. 1993). When the computer owner downloads copyrighted software, it possesses the software, which then functions in the service of the computer or its owner, and the copying is no longer of a transitory nature. See, e.g., Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 260 (5th Cir. 1988). "Transitory duration" is thus both a qualitative and quantitative characterization. It is quantitative insofar as it describes the period during which the function occurs, and it is qualitative in the sense that it describes the status of transition. Thus, when the copyrighted software is downloaded onto the computer, because it may be used to serve the computer or the computer owner, it no longer remains transitory. This, however, is unlike an ISP, which provides a system that automatically receives a subscriber’s infringing material and transmits it to the Internet at the instigation of the subscriber. '

In other words, the court is trying to say that in determining whether a copy is 'transitory' or not (and hence recognised by copyright as within the copyright owner's exclusive rights or not) doesn't just depend on how long a copy 'hangs around'. It depends, also, on the nature and purpose of the copy; what role the copy plays. This would be a means of taking into account the economic significance of the copy, and a way of putting in a kind of 'de minimis' analysis into copyright infringement - is this just too transitory for the law to intervene?

The question for us is - is this a form of reasoning that could be adopted here in Australia?

Let's think first about pre 1 January 2005 law - the law which is in question in the Sony case. One argument is that it would be entirely inconsistent with legislative history, and existing provisions, that seem to imply a recognition by government that temporary copies are covered by copyright (eg, the Explanatory Memoranda to the Copyright Amendment (Digital Agenda) Act 2000, and the Copyright Amendment (Computer Programs) Act 1999. The casenote by Band and Marcinko is apposite here - as they point out, the enactment of defences may effectively be something done in anticipation of certain court interpretations, or as a prophylactic measure to avoid the problems that might arise IF the court held that certain copies were in fact copies. Our Attorney-General's Department does have a habit of trying to cover all the bases in its legislation - consider, for example, the recent provisions in the US Free Trade Agreement Implementation Act 2004, which provide for mechanisms if it happens to be the case that there is some kind of unjust expropriation of property caused by creating new owners of sound recordings. So the legislative history, and even the existence of explicit exceptions that seem only to be necessary if temporary copies are covered isn't necessarily determinative in saying that government intended temporary copies to be covered. They could, quite plausibly, have wanted to provide certainty in case the court so held.

More importantly, however - is it possible to take into account a 'qualitative' element in analysing what counts under Australian law? Is there any equivalent to the concept of 'more than transitory duration' raised in the Loopnet case that Australian courts could hang their hat on?

That would depend on the interpretation of 'material form', yes?

According to the Copyright Act pre-1 January 2005, material form:

'in relation to a work or an adaptation of a work, includes any form (whether visible or not) of storage from which the work or adaptation, or a substantial part of the work or adaptation, can be reproduced.'

Now, clearly, we don't have the concept there of 'transitory duration' on which the 4th Circuit hung its analysis. But could you interpret 'storage', sensibly interpreted, to imply not only that there must be storage for some period of time, but also as including some qualitative element? Could it be argued that 'storage' must have a meaning, and that 'storage' implies that there is storage for some purpose - as in, 'storing for future use'? Perhaps.

The interesting thing about reading 'storage' in some 'meaningful' way, as implying something more than the simple physical act of having something in a technical thing known as a kind of 'memory', would be that such argument could equally apply post 1 January 2005. The current version of the definition of 'material form' reads as follows:

'material form in relation to a work or an adaptation of a work, includes any form (whether visible or not) of storage from which the work or adaptation, or a substantial part of the work or adaptation, (whether or not the work or adaptation, or a substantial part of the work or adaptation, can be reproduced).

Note that the concept of 'reproduction from' is gone (used in AVRA v Warner and Sony v Stevens to exclude memories in black box devices like PlayStation machines and DVD players) - but the concept of storage remains, and will have to be given a meaning. Hmmmmm.....

Is such a reading plausible? Well, perhaps. After all, the de minimis principle surely ought to have some application here.

What would it mean if such interpretation was adopted? Well, it might still be the case that copies in RAM in DVD players and PlayStations would be material form. The reasoning in the LoopNet case suggests that where a copy is there to be used then, 'qualitatively', it is of more than temporary duration. So downloading the computer program to memory to run the computer program IS a copy, but what happens in ISP networks is not. It might put some reins on the scope of copyright owners' ambitions to say that EVERYTHING is subject to their rights - but not much. Still, it might be something for ISPs and possibly others that we can't necessarily foresee.

Finally - a thank you must go to Anne Flahvin for sending me the link!

 
Oh yeah - and the CLRC reported...

...on the Crown Copyright Provisions. IPWazza has the goss. Wazza notes that:

''The Minister's press release indicates that the Government looks forward to receiving "feedback" about the report.'

I'm wondering if that means that the government is hoping that there will be all sorts of feedback and the government won't have to respond for ages. As usual on copyright reports, especially, it seems, CLRC reports... (Simplification anyone? Copyright and Contract perhaps?).

 
Some interesting discussion of the next generation encryption of DVDs

Ed Felten over at Freedom to Tinker dissects the new encryption system being considered for DVDs. The existing system of encryption of (and 'technological protection' of) DVDs is the 'CSS' (Content Scrambling System). Whatis.com offer this definition of CSS:

'Content Scrambling System (CSS) is a data encryption and authentication method used to protect digital versatile disk (DVD) movies from being illegally copied, distributed, and viewed from other devices, such as computer hard drives. CSS is one of several copy-protection methods currently used in today's DVDs.
The CSS method was developed by members of the DVD Copy Control Association (DVDCCA). This association includes companies in the U.S. motion picture industry (members of the MPAA) and the consumer electronics industry. The Matsushita and Toshiba companies are largely credited with the first main development efforts of the CSS method for encryption and decryption of DVD movies.'

CSS used a system which was notoriously easy to circumvent. It was 'broken' in 1999 by Norweigian teenager Jon Johanson, who wrote and released 'DeCSS'. This little bit of code led to some really big and expensive litigation, including the notorious 'DeCSS' case in the United States, where major movie studios, members of the MPAA, sued 2600 Magazine and its publisher, Emmanuel Goldstein, for violation of the Digital Millennium Copyright Act, Section 1201. The studios claimed that by posting and linking to DeCSS, 2600 was providing a technology for "circumvention" of access and copy controls on copyrighted works. The Second Circuit Court of Appeals, in New York, agreed with the studios that DeCSS was an unlawful circumvention device. For more of a story on DeCSS, see the Wikipedia entry.

So much for background. The interesting thing is that, according to Ed Felten, the new encryption system is more effective - at least in limiting entry for prospective makers of DVD players. This is because, according to Ed Felten,

Each player device is assigned a DeviceID (which might not be unique to that device), and is given decryption keys that correspond to its DeviceID. When a disc is made, a random "disc key" is generated and the video content on the disc is encrypted under the disc key. The disc key is encrypted in a special way and is then written onto the disc.
When a player device wants to read a disc, the player first uses its own decryption keys (which, remember, are specific to the player's DeviceID) to unlock the disc key; then it uses the disc key to unlock the content.
This scheme limits entry to the market for players, because you can't build a player without getting a valid DeviceID and the corresponding secret keys. This allows the central licensing authority, which hands out DeviceIDs and keys, to control who can make players. But there's another way to get that information -- you could reverse-engineer another player device and extract its DeviceID and keys, and then you could make your own players, without permission from the licensing authority.
To stop this, the licensing authority will maintain a blacklist of "compromised" DeviceIDs. Newly manufactured discs will be made so that their disc keys can be unlocked only by DeviceIDs that aren't on the blacklist. If a DeviceID is added to the blacklist today, then players with that DeviceID won't be able to play discs that are manufactured in the future; but they will still be able to play discs manufactured in the past.

Ed Felten's view that this could be effective has led to some quite extended debates in the comments section on this post; they are worth a read.

Relevance for Australia? Well, assuming it all goes ahead, we will get it too of course. And the usual issues apply. First, as I understand it, this will again make it harder for open source people to produce DVD players. At the moment, as I understand it, it is possible to get an open source program for playing DVDs on your PC, either with DeCSS already in there (or you can find DeCSS and install it as necessary). All these systems which seek to tie encryption to a licensing body create possibilities for refusing licenses for open source players. Doesn't mean such licenses won't be granted ever, but they could be hard to do.

Second area of relevance: such a system could be used to continue the practice of region-coding, which has been of considerable policy concern here in Australia. In general, policy-makers have indicated that they don't want to do things that will enforce region-coding. The current system of region-coding has been relatively easy to attack at least on policy grounds because the region-coding purpose of the encryption and its keys is so transparent - partly because it is not an individualised system. In a system where DeviceIDs are issued only to a limited number of devices (if that is indeed possible), the system can STILL be used for region-coding, but when you circumvent these individualised codes, it is going to be that much harder to argue that you are circumventing JUST to overcome the region-coding.

 
Congratulations Kathy Bowrey

In the 'what I'm reading' category today is Kathy Bowrey's new book, 'Law & Internet Cultures', published by Cambridge University Press. I've been waiting to read this for ages and am very much looking forward to diving in. More thoughts when I've read...

 
Blawging and Scholarship

David Starkoff speculates today that (to adopt a line from an excellent documentary on the political role of music, shown last night) - 'the times they are a-changing'. According to Starkoff, my comment that '“publishing on a blog … is not really something that I can get any recognition for, in academic-land' is, perhaps, not so very true now, with the recent notes on a couple of blogs that blogging can assist in placing law review articles (see here (Volokh), here (Lawrence Solum), here (Donna Wentworth) and here (Solum again) (links courtesy of David!).

My previous comment that blogging is not recognised is probably too general, strictly speaking, to be true. I find I do get recognition from my blogging - particularly from people in government, and from academics (and to a much lesser extent, from some practitioners). I'm sure it's helped my general profile to some modest degree. Hell - people have sometimes introduced themselves at conferences by noting they've 'seen the blog'. A post on the blog even got quoted in a Parliamentary Library paper once (on the FTA). Not being a mega-blog by any stretch of the imagination, I'm not sure that benefit is huge, but it is undoubtedly there.

Where blogging does not get recognised is in the formal criteria for performance of academics, which mostly (and rightly) centre around the publication of peer-reviewed articles. When my performance is evaluated each year, the fact that I have a site with x number of hits per week or month is not something that fits easily with ordinary criteria. And when DEST allocate research funding to universities, they take account of peer-reviewed publications - not blog hits. So formally it won't get me any recognition.

I'm also highly skeptical that it would be easier for me (as opposed to some US academic bloggers) to place law review articles as a result of blogging. It would make no difference to publication in peer-reviewed journals. Peer review is a blind process - people do not know whose articles they are reviewing as they review them. So my profile from blogging won't help there. All the worthwhile journals in the UK and Australia are peer-reviewed.

Law journals in the United States, on the other hand, are run by students, and articles are selected by student editorial boards. Such boards are far more likely to be impressed by a name they know, and might well solicit content from blogging academics. So maybe blogging would help me place an article in the United States. But again, I doubt it - because I don't think US students are going to be frequenting an Australian blog.

Update: David Starkoff responds.

 
Lawrence Lessig in Town...

Apparently Lawrence Lessig is appearing in Melbourne the Deakin Lecture Series on Innovation, at the Town Hall on May 8 at noon. Tickets are free but you can book a place...

 
'Global IP Markets require Global Consistency': A Reply to a Reply

A little while ago, I published a piece in CIS's publication, Policy, entitled "Locked In: Australia Gets a Bad Intellectual Property Deal" (pdf) (Policy, Summer 2004-05). In Policy Volume 21(1), Tony Healy has offered his response: 'Global IP Markets Require Global Consistency'. (pdf).

One of the benefits of a blog is that I get a chance to 'respond to the response', without having to publish an article about it. I don't want to spend too much time on this, but a few points in response are worth noting, I believe.

An unarticulated assumption

First, the basic assumption that appears to lie at the heart of Healy's piece needs to be articulated: it is that if some IP protection is good for innovation (true statement), then more IP protection is necessarily better (NOT necessarily true - it depends on the kind and scope of IP protection). Healy claims that:

'Stronger laws governing IP recognise the increasing role of intangibles, R&D and intellectual property in the world economy. As such, it [sic] benefits innovative and creative Australians and keeps our economy internationally competitive. It also preserves Australians' access to new medicines and movies'.

Having a good IP system is important for innovation. Continually increasing IP protection does not necessarily lead to more innovation.

As has been long recognised, stronger IP protection has costs - specifically, costs for follow-on innovators. Adopting stronger patent laws which prevent researchers from experimenting on patented inventions (a la the US law, post Madey v Duke) is not going to help innovative Australians, it will hinder the next generation of research and development. As a general rule, it seems to me that we should be applying a basic standard: those arguing for more (stronger) IP protection bear the onus of showing why it is necessary, and that the benefits outweigh the costs.

In simple terms, this process was never carried out for the IP Chapter of the FTA, and it is far from clear that the benefits of the new IP laws outweigh the costs.

I'm not anti-IP. I'm anti the unthinking, unanalysed extension of IP laws.

Copyright term extensions are 'fine'???

According to Healy, 'there are some good reasons for extending copyright terms'. OK, so let's examine those 'good reasons' a little:

term extension compensates for the greater ease of copying, which otherwise undermines the value of copyright holdings. This is particularly appropriate now that CD and DVD burners rae becoming widespread

Hmmmm, pardon me, but aren't most of the things being copied via CD and DVD burners a tad younger than copyright term extension would apply to? It's kind of weird to argue that Britney Spears deserves longer protection because so many people are burning CDs of her music.

although the present value of future term extensions might be small, it might also represent a cross-over point for writers and other creators on marginal incomes, thus encouraging the creation of more works

Frankly, these kinds of arguments are so deeply unconvincing. According to the Economists' Brief in the Eldred litigation - a brief the authors of which included several Nobel prize winners in Economics, the present value of the term extension is TINY - an improvement of less than 1% compared to the pre-extension term. This is a miniscule additional incentive for creators. The amount of additional creativity that such an extension will induce is likely to be very small - so the question is whether that tiny benefit outweighs all the costs of term extension - a point I'll come back to below.

'publishing, movie-making and computer games are businesses that depend on occasional hits. High revenue streams from occasional hits subsidise a large range of additional titles...In this context, the additional revenue from term extensions might be an essential part of the publishing process'

OK, let's skip over the fact that this is completely unproven and should really be the subject of ready examination. Surely we can't skip over the fact that 'occasional hits' in book, movie, and particularly computer game terms are still going to be generating the overwhelming majority of their revenue in the immediate term. I refuse to believe, until I see proof, that movie studios are more willing to take risks with some more movies because they anticipate their hits will still be generating revenues 95 years from now.

'[there is a] problem in the claim of free culturists that greater distribution causes no harm to the creator. There are certain works where it does ... IP plays an important role of stewardship

It's not clear to me how this argument relates to copyright term extension. Is the point that 'stewardship' should last 20 years longer than it does? Why?

The premise of opponents of term extension is the idea that copyright owners should have a defined period of control, in which to reap back the rewards of their creativity and investment - and that, after that, the material should be in the public domain for others to use, and distribute, and build on. Stewardship, like ownership, should not be forever.

Further, stewardship is not always a good thing. The problems of 'stewardship' are well known - Beckett's plays are still difficult to put on because of the 'stewardship' of members of his family. Heirs of James Joyce have caused untold problems in the celebration of the achievement that is Ulysses.

As to claims that term extension would impose harmful costs on Australia, analysis by the Copyright Agency Limited suggests the actual effect would be tiny. At universities, for example, only 4.5 pages in every 10,000 copied would be newly captured by term extensions.

Ah, where to begin on this one. First, extrapolating from CAL's figures to all "costs on Australia" is just a nonsense. CAL deal with some, limited uses of copyright - uses in universities, which are highly likely to involve mostly new works.

Second, the basic point that the costs would be low seems to be a little inconsistent, too, with his argument that term extension does compensate for increased copying and might help 'marginal' authors. If the costs are so low, surely that means that few or none are profiting and the additional incentives or 'compensation' are illusory?

Third, the key point raised by critics of copyright term extension is not the direct economic costs in terms of additional license fees. Any additional license fees for works already created are just a windfall and not rational policy, so in principle they are all bad, but that's not the biggest objection.

The more significant objection is that it creates a whole lot of works that get 'locked up' - subject to permission requirements - even though they are old and no longer being exploited. This is, in part, the 'orphan works' problem, which I've talked about elsewhere (see here, and here). Healy's answer to that issue - that 'copyright ... protects only the implementation, not the idea" is not to the point. Many re-uses of material require use of more than the 'idea' - people wanting to use old films in new documentaries, or existing artworks in new artworks, for example.

Unwarranted Attacks on Important IP mechanisms

My 'blast' of the DMCA provisions in the FTA is, according to Healy, an 'unwarranted attack'. The interesting point about Healy's discussion here is that he tries to defend Lexmark's approach. In the Lexmark case, Lexmark attempted to use US Copyright Law against circumvention of techological measures to enforce its technical restrictions that sought to ensure that only 'genuine' Lexmark cartridges could be used on its printers. Healy says Lexmark should be allowed to do this, because it enabled Lexmark to sell printers cheaply and subsidise the printers through the higher cartridge prices - ensuring that those who print more, pay more.

Let's be clear on this. Lexmark, in this case, attempted to use digital copyright law, which was enacted with the intention of giving copyright owners additional protection against widespread copyright infringement in a digital environment. They tried to use this law to secure control over an aftermarket for print cartridges. This is not what this law is meant to be about - even according to our own government in its comments on the FTA. As one of the judges (concurring) noted in the Lexmark case:

'If we were to adopt Lexmark’s reading of the statute, manufacturers could potentially create monopolies for replacement parts simply by using similar, but more creative, lock-out codes. Automobile manufacturers, for example, could control the entire market of replacement parts for their vehicles by including lock-out chips. Congress did not intend to allow the DMCA to be used offensively in this manner, but rather only sought to reach those who circumvented protective measures “for the purpose” of pirating works protected by the copyright statute. Unless a plaintiff can show that a defendant circumvented protective measures for such a purpose, its claim should not be allowed to go forward. '

Patents need work

Healy claims that:

'America's universally envied software and high technology industry owes a lot to strong patenting, and this is a lesson that can benefit other nations including Australia

Hmmm. You know, I think I prefer to believe Bill Gates, who has been quoted as saying:

'If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today. '

Or, more recently, the attitude of IBM on software patents:

'Another development in recent years that pushed IBM to reconsider its patent approach has been the surge in patent filings and lawsuits, including the rise of firms whose only business is to file patent infringement suits, known as "patent trolls".
"It seemed to us the pendulum has swung way too far in the direction of companies blindly chasing patents, and blindly chasing the enforcement of patents", Mr. Kelly said.'

It may be that IBM can be accused of hypocrisy on that one; and Gates' response to the problem he highlighted was to 'get lots of patents' so you can't be shut out of the market (so you have a basis to force negotiations).

The point remains. There is plenty of criticism of software patents, and Healy's argument - that software patents led to the strong industry the US has today - has been rejected by one of the people most involved in the US's high technology industry.

Finally, the sounds of silence

Finally, it is worth noting that Healy has not responded at all to my main criticism of the FTA Chapter. My chief complaint about Chapter 17 has always been this:

'The first thing that strikes you when you look at Chapter 17 is its sheer complexity: at 29 closely typed pages, it is breathtakingly long, detailed, and opaque. … Because Chapter 17 is so detailed, and covers the full gamut of all IP rights, it locks Australia in to one particular model of IP law. We have lost a lot of fexibility to choose and adjust our own IP policy.'

Healy has no answer to that basic argument. That's because there is none.

 
Paying for Retransmission - the Screenrights case

As the Australian reported on Monday:

'AUSTRALIA'S pay-TV industry and the Screenrights copyright collection agency will today start a three-week court battle to determine the amount the pay-TV sector should pay copyright owners for the use of programs shown on retransmitted free-to-air TV signals ...

[A]fter three years of negotiations, Screenrights and the pay-TV industry's peak group (the Australian Subscription TV and Radio Association) were unable to reach agreement on what fee was reasonable and Screenrights took action in the Copyright Tribunal – part of the Federal Court – last year.

The first hearing, held last October, focused on the legal framework and covered the operation of retransmission schemes overseas. But the latest hearing is set to determine what will be considered a reasonable payment.

The pay-TV sector argues only a nominal fee should be payable to the underlying rights holders, which include TV program producers and Hollywood movie studios.

In other words, the big issue in this case is: should Pay-TV operators be paying nothing, or almost nothing, to re-transmit free-to-air television? Or should they pay some amount, eg some amount per consumer, to do so?

The debate going on in the Copyright Tribunal does play in an interesting way with the Explanatory Memorandum to the Copyright Amendment (Film Directors' Rights) Amendment Bill 2005, currently before Parliament. That Bill aims to give Film Directors new rights:

'Film directors make a major creative contribution to the film making process. Other than moral rights, Australian copyright law does not currently recognise this contribution, while other creators involved in the making of a film such as screenwriters and composers are recognised. The Government considers that there is a need to amend the Copyright Act to give, for the first time, film directors a copyright in the films they direct.

This Bill provides rights to directors to share, as copyright owners, in remuneration for the retransmission of films included in free-to-air broadcasts.

The amendments to the Copyright Act 1968 provide for film directors to be joint copyright owners of their films, along with producers, for the purposes of the retransmission statutory licence in Part VC of the Copyright Act. The retransmission statutory licence allows free-to-air broadcasts to be retransmitted without permission from copyright owners provided the retransmitter pays fair remuneration for the owners of copyright in the underlying materials in broadcasts, including films and pre-recorded programs. Under the amendments, the directors and producers would share a right to part of this remuneration, as joint owners of the copyright in their films for this purpose'

In other words, this Explanatory Memorandum characterises the Part VC license, introduced in 2000, as a 'new revenue stream'. The Government apparently thinks there IS money in this statutory license. Which kind of puts paid to an argument by Pay TV operators that the fee should be nothing, or nominal!!!

 
Trade Mark Dilution - action in the United States

The Federal Trademark Dilution Revision Bill of 2005 has been reported to the House of Representatives in the United States. The Revision Act:

• Effectively overturns the ruling of the US Supreme Court in the Victoria's Secret case, so that action may now be taken 'regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury'
• Introduces a more stringent test for famous marks, stating that ' mark is famous if it is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner'
• Introduces definitions of both 'blurring' (association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark) and 'tarnishment' (association arising from the similarity between a mark or trade name and a famous mark that harms the reputation of the famous mark)
• Changes the defences to dilution, including by removing the defence for 'non-commercial use of the mark', replacing it with 'Fair use of a famous mark by another person, other than as a designation of source for the person's goods or services, including for purposes of identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner'.

More commentary on the Bill from INTA, here.

A letter from the American Intellectual Property Law Association in support of the Bill, here.

IPKat says that the Bill is now 'through Congress', but I'm not sure of the exact status: INTA only says that a vote is expected in early Spring.

 
Other big news this week: BBC's Creative Archive

In a new development in the Creative Commons Space, the BBC/Channel 4/Open University/British Film Institute "creative archive" license launched this week. The idea is:

'The Creative Archive is a BBC led initiative to provide access to public service audio and video archives in a way that allows the British public to find, share, watch, listen and re-use the archive as a fuel for their own creative endeavours. In other words, you can rip, mix and share the BBC.'

One interesting point made in some of the commentary is that the BBC license is not 'interoperable' with the Creative Commons licenses. I can't help but wonder what the implications of that are. It goes to the heart of one of the issues that was discussed in last year's conference at UNSW 'Unlocking IP' - one of the issues with Creative Commons is the possible proliferation of different, competing, and even inconsistent license terms. One the one hand you want people to have the freedom to say what others can do with their stuff. On the other hand the more different license terms are out there, the more trouble non-lawyers have in understanding it all, and the more trouble people are going to have doing what Creative Commons is meant to encourage them to do - create.

The website is here: Creative Archive License Group.

Via Copyfight, a couple of links to more background:

• here (DJ Alchemi) and
• here (DJ Alchemi) and
• here (from the official site)

 
Development Agenda

News of the week in WIPO has been the meetings to discuss the WIPO Development Agenda. The Development Agenda (pdf) proposed by Argentina and Brazil, seeks to introduce a 'development dimension' into WIPO's work, and proposes some restructuring of WIPO to that end.

CPTech have a valuable page of documents on the Development Agenda here. Reports on these meetings have been collected also by Copyfight here.

Francis Gurry, Deputy Director-General of WIPO, has been here in Melbourne this week, and on Monday gave a talk for IPRIA hosted by Davies Collison Cave. At that Seminar, on 'The Future of The Patent System', he characterised the distinction within the Development Agenda talks as lying between those who want to 'legislate change' (Friends of Development), and those who want to make practical changes (US and friends). I think there is probably more to it than that, as I don't think the Friends of Development just want a bit of legislation...

 
An interesting contrast.

I know I'm a bit like a broken record on this one, but I can't help but point out this little interest factoid.

In the Grokster hearing, there was a slight frisson of excitement/interest/wonder when counsel for the RIAA said:

And let me clarify something I think is unclear from the amicus briefs.The record companies, my clients, have said, for some time now, and it's been on their Website for some time now, that it's perfectly lawful to take a CD that you've purchased, upload it onto your computer, put it onto your iPod.

People wondered if the RIAA had ever actually made this concession before. A bit of digging around indicates that in fact, on the FAQs on the RIAA site, they do take this position. In response to the FAQ 'What is your stand on MP3?', the response is:

'This is one of those urban myths like alligators in the toilet. MP3 is just a technology and the technology itself never did anything wrong! There are lots of legal MP3s from great artists on many, many online sites. The problem is that some people use MP3 to take one copy of an album and make that copy available on the Internet for hundreds of thousands of people. That's not fair. If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that's great. It's your music and we want you to enjoy it at home, at work, in the car and on the jogging trail. But the fact that technology exists to enable unlimited Internet distribution of music copies doesn't make it right.

The interesting point I want to note is that the Australian equivalent to the RIAA, ARIA, take quite a different view on their FAQs:

'I have bought a legitimate CD. Isn't it legal to make copies for my own personal use?
Except in very limited circumstances which are specifically set out in the Copyright Act (e.g. for the purposes of research, study, criticism or review), no such general right exists under Australian law.
In the same way that buying a copy of a book doesn't give you ownership rights in the author's manuscript, the purchase of a copy of a CD doesn't mean that you own (and can do anything that you like with) the recording that is on that CD.
As a consumer, the purchase of a CD only gives you the right to own the physical disc, to play it privately, and to pass on the same physical disc to another person. You have not bought the right to make or distribute copies, whether on CD-R or over the internet. This means that copying the music on the CD, without the permission of all relevant copyright owners, is an infringement of copyright.

The ironic thing about this, of course, is that in the United States, iPods would have lots of legitimate uses even if copying personal CDs was not ok - because the US have an iTunes store. By strong contrast, in Australia, there are lots of iPods, but the official position is that most of the reasons why people would buy iPods (ie, most music-related reasons) are to do illegal acts.

 
Brief heads up: new patents judgment

Just a quick note - Sam Ricketson this morning alerted me to the fact that there has been another judgment issued yesterday by the Federal Court (Merkel J) on patents: PhotoCure ASA v Queen*s University at Kingston [2005] FCA 344. The patent in question relates to a method of detection and treatment of malignant and non-malignant lesions by photochemotherapy, and the judgment appears to cover a broad range of issues: both invalidity (obviousness, lack of novelty, lack of sufficiency and best method, lack of definition or lack of fair basis) and infringement (consideration of the principles to be applied in determining a claim of infringement in substance when no claim is infringed on a textual approach to construction of the patent).

Haven't had time to read it yet though.......

 
Tim Minchin at the Melbourne Comedy Festival

Went to the Melbourne Comedy Festival last night - caught some street caberet, and then scored a free ticket to see Tim Minchin's Dark Side (I just love hanging out at the town hall to see what shows are on that I could sneak in to). Later went to the Festival Bar at HiFi.

I just want to say that Tim Minchin was GREAT. If you are looking to catch something in the festival, I'd recommend it. He does music (amazing pianist); he does beat poetry, he does wit. Another review called him 'the thinking person's comic crumpet'. I'd second that.

Buy Tim Minchin tickets here.

 
Beat me to it - Warwick Rothnie on trade mark sales and licenses

Here.

Looking at this Federal Court decision (Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288), not yet fully available on AustLII.

 
More pointers: grokster, and extradition for copyright infringement

For some particularly interesting commentary on the Grokster hearing in the Supreme Court see:

• this post of Timothy Armstrong
• this post by Ernest Miller

But as you read these, remember that this passage could never be claimed here in Australian law.

'At least some of the Justices, Scalia in particular, seemed troubled by how an inventor would know, at the time of inventing, how its invention might be marketed in the future. How, some of the Justices asked MGM, could the inventors of the iPod (or the VCR, or the photocopier, or even the printing press) know whether they could go ahead with developing their invention? It surely would not be difficult for them to imagine that somebody might hit upon the idea of marketing their device as a tool for infringement.

MGM’s answer to this was pretty unsatisfying. They said that at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one’s own CD and storing it in the iPod. This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM’s side of the case who don’t think that example is one bit legal. But they’ve now conceded the contrary in open court, so if they actually win this case they’ll be barred from challenging “ripping” in the future under the doctrine of judicial estoppel. '

At the moment, in Australia, ripping your CD to an iPod is illegal. It is an infringement of copyright. And I can assure you that in the various cases currently before the courts, the illegality of any unauthorised copying is one of the foundations of the copyright owners' cases.

The other pointer for the day is this story in Australian IT: Hew Raymond Griffiths, the man who faces extradition to the United States for criminal copyright infringement, has lodged an application for special leave to appeal with the High Court of Australia, following a judgment by the Full Federal Court allowing extradition to go ahead.